During the holiday season, people’s thoughts turn to performing charitable acts and giving back to their communities. For public sector employers, now is the time when volunteers become plentiful. However, public sector employers must be cautious that they do not take any action which could turn a volunteer into an employee under the wage and hour laws.
Specifically, when accepting volunteer services, employers must not run afoul of the Fair Labor Standards Act (FLSA), the federal law which governs payment of the majority of employees in the United States. Generally speaking, public sector employers can accept volunteers, however, there is one important exception. Public sector employers may not allow their own employees to volunteer to perform additional work for their employer without compensation.
Initially, to be considered a volunteer, an individual must be performing services for civic, charitable or humanitarian purposes. The services must be entirely voluntary, with no direct or indirect pressure by the employer to volunteer, no promise of advancement for volunteering and no penalty for not volunteering.
If the answer to any of the below FLSA test questions is yes, then the individual is not a volunteer, but must be paid:
- Are the activities predominantly for the individual’s own benefit?
- Does the individual impair the employment opportunities of others by performing work that would otherwise be performed by regular paid employees?
- Does the volunteer provide services that are the same as services provided by a paid employee?
- Do the activities take place during the individual’s regular working hours as scheduled overtime hours?
- Is the volunteer time insubstantial in relation to the individual’s regular hours?
Although an employer need not pay a volunteer, a volunteer can be paid a nominal fee or expenses. The Federal Department of Labor generally considers a nominal fee to be payment of less than 20% of the amount that otherwise would need to be paid to hire someone full-time to perform the same services (the 20% rule). The nominal fee must not be tied to productivity. Some examples of expenses which may be paid to volunteers include: a uniform allowance or reimbursement for cleaning expenses; reimbursement for tuition, transportation and meal costs to attend volunteer training classes. In addition, volunteers can be provided with books, supplies or other materials necessary for volunteer training.
Finally, it is important to note that the FLSA forbids private sector employers from accepting volunteer services.
And remember the old adage—it’s always better to give than to receive.
The postings on this blog were created for general informational purposes only and do not constitute legal advice or a solicitation to provide legal services. Although we attempt to ensure that the postings are complete, accurate, and current as of the date of publication, we assume no responsibility for their completeness, accuracy, or timeliness. The information in this blog is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. Readers should not act upon this information without seeking professional legal counsel.
This blog may contain links to independent third party websites and services, including social media. We provide these links for your convenience, and you access them at your own risk. We have no control over and do not monitor the content or policies (including privacy policies) of these third-party websites and have no responsibility for, and no liability with respect to, their content, accuracy, or reliability. Unless expressly stated, we do not endorse any of the linked websites or any product, service, or publication referenced herein or therein. We will remove a link to any site from this blog upon request of the linked entity.
We grant permission to readers to link to this blog so long as this blog is not misrepresented. This site is not sponsored or associated with any other site unless so identified.
If you wish for Wilentz, Goldman & Spitzer, P.A., to consider representing you, please obtain contact information from the Contact Us area of this blog or go to the firm’s website at www.wilentz.com. One of our lawyers will be happy to discuss the possibility of representation with you. However, the authors of Wilentz blogs are licensed only in New Jersey and/or New York and do not wish to represent anyone who viewed this site in a state where the site fails to comply with all laws and ethical rules of that state.